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In The Supreme Court of Georgia

Subbamma V. Vadde
Appellant

Vs.

Bank of America (BofA)


Appellee

Based on Errors in
Georgia Court of Appeals
Case# A09A1714

PETITION FOR WRIT OF CERTIORARI

Subbamma V. Vadde

Submitted On: December 23rd, 2009


PETITION FOR A WRIT OF CERTIORARI

Comes Now, the Appellant Subbamma Vadde, Pro Se, in the current case, and pursuant to Rule

38 of the Georgia Supreme Court, Federal Rules of Civil Procedure (FRCP), Rules of Evidence, Rule

#602 and Rule#802, hereby petitions this Honorable Court for a Writ of Certiorari to review the opinion

and judgments in Subbamma Vadde Vs. Bank of America, stated in the interim opinion document of the

Court of Appeals dated 11/20/09 upon denial of her Motion for Reconsideration (MFR) dated 11/30/09, by

Court of Appeals on 12/9/09 (copies of Court of Appeals documents attached in Exhibit COFAPLERR1

and Exhibit COFAPLERR2 as per Rule 39), for reversal of judgments of State Court of Cobb County on

2/4/09 (R-915-916).

The issues presented in this petition, hinging on principles of finance, international trade and

commerce, in the current day interconnected and interdependent world economy; are of great

importance, gravity, and value to the public, consumers, the world financial system, bank

depositors/customers, community, and humanity in general. This Petition must be granted pursuant to

Rule 40 of the Rules of the Supreme Court of Georgia, to prevent injustice to depositors, and aliens and

immigrants in the United States, since the Court of Appeals opinion in this case is not only unreasonable

and unconscionable, but manifests injustice, is prejudicial, based on inadmissible hearsay and

speculation/whims, and is contrary to logic, objectivity, and commonsense, reality and facts, and the laws

of nature, the world and our Universe that we live in.

I. AT ISSUE

The following are the issues/questions/contentions presented by the Appellant:

1) Who (which organization, institution, and/or which individual) is responsible for clearing the checks

deposited by a customer? Is it the recipient of the check, depositary bank, the payor bank, the

collecting bank, the maker of the check/maker bank, the depositor, or the government?

2) What, if any, are the regulatory norms for clearance of international checks?

3) What specific time duration (starting from the deposit of a check) constitutes the meaning of the term

midnight deadline and what exact time signifies final for check clearance, as mandated by UCC (

4-301, 4-302, and 4-105(2)) and OCGA ( 11-4-301, 11-4-302, 11-3-502, 11-4-104(10),
11-4-105(2), 11-4-201(a), 11-4-202, and 11-4-215 (a)) guidelines in banking transactions,

according to the intent of the statutory legislation?

4) What constitute tangible objective metrics and proof that a check is fraudulent/counterfeit or not

genuine and authentic? Conclusory allegations, based on whims, opinions, speculation, rumors, etc.

and other intangibles by BofA or banks, etc. are not acceptable metrics.

5) Appellant contends that it is unethical for a bank such as BofA to clear a check and then come back

to debit depositors account and falsely allege that the depositors check it cleared earlier is

counterfeit, when the real reason for its doing so is that it is broke and/or has a broken check

clearance system.

6) Isnt it unethical and fraudulent for banks to clear proceeds from checks deposited and attempt to

portray them as loan proceeds in order to run their banking business and manipulate/inflate their bank

balance sheets with undue amounts, and exercise unjust and invalid/non-existent authority over

depositors, as was done by bank in this case in 2004 after the appellant had spent the proceeds?

Yes, it is unethical of banks to do so. Appellant therefore contends that banks, the State Court of

Cobb County, and the Court of Appeals erred in their actions and judgments in this case in past on

2/4/09, 11/20/09, and 12/09/09.

7) The Petitioner has amply proved that favorable constructions of the laws of the Uniform Commercial

Code exist that already prove that Appellant is discharged and proved innocent, faultless, and is

without liability, in this case. Why then did the Court of Appeals and the State Court of Cobb County

fail to address any of the issues raised by Ms. Vadde in the past and why did they violate her

Constitutional and Statutory, as well as Due Process rights incessantly in this case from day 1 of this

cases incidents in 2004?

8) At issue is the question as to how BofAs case against Appellant could come this far while violating

her constitutional rights? (a) The innocent & faultless Petitioner/Appellant should never have had this

case initiated against her in the past, or, (b) Upon creation of such a bogus BofA case, Appellant

should have either been granted a trial for her disputed issues (since she had defense witnesses who

could vouch for the veracity of her claims and the authenticity of the check she deposited), or, (c)

Appellant should have been granted a complete dismissal of the case with a granting of her

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Counterclaim requests by the trial court, notwithstanding the fact that there can be no trial in this case

since Appellant already had valid Motions in Limine in place that had to be granted in favor of her

requests in her Counterclaim, preventing the need for a trial anyway.

9) At issue is the need to condemn lower courts unjust tactics of ignoring evidence favorable to an

Appellant/depositor/consumer whenever presented! Courts cannot justifiably have different

standards for BofAs evidence and Appellants. So, Appellants arguments/claims cannot be merely

termed self-serving, and are facts within the scope of this case.

10) At issue is the need to hold banks such as BofA accountable and responsible for their actions of

wrongful dishonor of appellant, depositors check and for their actions of acting on whims and

hearsay without tangible proof of reason for any hypothetical dishonor. BofA should be made to

compensate Appellant for BofAs nonsensical behavior in the past.

11) At issue is the question of why the banks should not be held to the same standards of evidence and

law for earning their income from capital, as depositors, investors, and government, or the rest of us

in society and the world do? It is commonsense to understand that just as banks can/tend to get paid

commissions on capital, deposits and investments into their accounts immediately upon deposit, so

can/do depositors/endorsers and investors get paid and make immediate commissions upon their

capital, deposits and investments into their accounts, without the need to dwell on any issues of

providing goods/services.

12) Appellant contends that it is atrocious for humanity and shameful for the Justice System in Georgia

and unjust to all innocent faultless depositors and other people/consumers in this world like Appellant,

that she was not granted dismissal of BofAs case or granted her requests in her counterclaim by

2/4/09, and has had to prepare this Petition to submit to the Supreme Court of Georgia to seek

justice. At issue is the importance and need to change dysfunctional court rules and procedures, to

enforce clear and specific legislated laws, for provision of immediate compensation to Appellant, as

an Extraordinary remedy based on her counterclaim, for past banking and court errors under such

circumstances, without Appellant having to wait to initiate a separate lawsuit on banks.

13) At issue is why depositors have to even use banks as intermediaries at all, for any financial

transactions in the country and across the globe, if the banks do not take responsibility for payment

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upon acceptance of the deposit, nor have the capacity to assume the risk for clearance of a deposit

before acceptance without the governments intervention or involvement?

14) Issues in this case are complex enough to be dependent on acceptable practices of foreign banks,

issues and guidelines for international trade and commerce, capital markets, economics, foreign

exchange fluctuations and related markets for the Federal Reserves of various Countries, and foreign

law/international law including United Nations Conventions and their exceptions governing
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international check transactions. Since the issues of clearance of the 3 party check in this case

hinge on the principles of microeconomic and macroeconomic fundamentals of banks, nations, and

governments in our current day interdependent economies of the world in national and international

commerce, as had been illustrated by Petitioner/Appellant in the record of this case (R-1-924), this

case is connected with issues of national and international economic importance. This makes it

imperative that this Petition for Writ of Certiorari and its requests be granted immediately.

15) At issue is prevention of the use of affidavits of hearsay as those used by BofA in such bank check

cases that violate Appellants Constitutional rights.

16) At issue is protection of Appellants right to privacy as well as her fundamental First Amendment right

to protest and not waive UCC requirement of notice of dishonor by bank (BofA and Ulster Bank).

17) At issue is the need to prevent discrimination against Appellant and her politically well connected

immigrant family, to prevent discrimination against politically connected people and immigrants due to

their affiliations, as well as prevention of discrimination against immigrants in financial transactions in

general.

18) At issue is the need to put an end to arbitrary and whimsical discrimination and blockades of

international checks from international financial institutions other than those of the United States,

whether they are from Nigeria, Africa, or the European Union, for better and smoother international

trade and commerce.

19) At issue is the need to avoid double standards, to guarantee Appellant and other depositors like her

(by virtue of precedence set by this case), the same legal rights and protections from law afforded to

banks such as BofA in this case. Courts cannot apply one standard when it comes to BofA, affording

them use of self serving statements but ignore Appellants statements, even if they are facts

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supported by documentation and proof as affidavits from defense witnesses, and even when there is

lack of any tangible adverse evidence that is not based on speculation or a conclusory allegation.

20) At issue is the need for prevention of unconscionable and unilateral modification of terms of a deposit

services agreement by a bank (such as BofA) after the depositor signs up for an account, without the

depositors prior consent and knowledge, calling for unjust waiver of protest and notice of dishonor; to

prevent dictatorial and arbitrary/whimsical dishonoring of international checks deposited.

21) At issue is the Constitutional requirement to prevent arbitrary hearsay and conclusory allegations by

BofA from being supported by lower courts or their judges based on their whims and subjectivity,

without objectivity, which mandates reversal of State Court of Cobb Countys judgment on 2/4/09 and

reversal of judgments/decisions in Court of Appeals interim Opinion on 11/20/09 and denial of Motion

for Reconsideration on 12/09/09. This makes it imperative that Certiorari be granted as requested

here.

II. BACKGROUND/INTRODUCTION

Appellee (BofA) wrongly dishonored Appellants international check for 35,000 (Euros) from Ulster

Bank of Ireland (deposited on 6/12/04), after originally crediting and clearing it by 6/14/04, without giving

her a timely notice of dishonor by the midnight deadline as mandated by the Uniform Commercial Code

(UCC) of the United States. BofA unilaterally, unreasonably, and unconscionably modified its deposit

services agreement without Appellants/depositors prior consent or knowledge, after Appellant opened

her account in 2001, calling for an unjust waiver of protest and presentment of notice of dishonor, in

violation of UCC guidelines. BofAs deposit agreement stood invalid and terminated when Appellants

account was closed and wrongfully debited in August of 2004, much before BofAs invalid affidavits of

hearsay were prepared or introduced in this case in 2006. Appellant also terminated BofAs agreement

prior to this case and exercised her First Amendment Constitutional right to object and protest against

banks atrocities and did not waive her right to terminate BofAs agreement and protest against

waiver of timely notice of dishonor by the midnight deadline. Further, BofA did not present the

check to maker bank (Ulster Bank), nor did Ulster Bank dishonor Appellants check, and there is no

evidence to the contrary in the record of this case. Contrary to Court of Appeals claims in its denial

dated 12/09/09 of Appellants MFR, BofAs affidavit of hearsay from its custodian of records (made in

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11/06 after Appellants account was closed in 8/04, without personal knowledge on authenticity of check

and notice of dishonor aspects) does not state that BofA was notified by Ulster Bank that the check

was returned unpaid as a counterfeit item, but instead states that it was notified that it was returned

unpaid by its payor branch/division [which in this case is proved to be by BofAs Operations

Technology Division for foreign transit items, and not the maker bank, Ulster Bank, as illustrated

in Figure 2 of this Petition for Writ of Certiorari].

Neither BofA, nor the lower court Judges have presented any tangible evidence or pointed to any

specific portion of the record to substantiate as actual tangible proof for reason for dishonor (what is the

alleged fraud here, and why was the check alleged to be counterfeit, even if hypothetically speaking?).

BofA and State Court of Cobb County, as well as Court of Appeals have not presented any evidence that

the said check was presented to Ulster Bank, and have not presented any proof of dishonor with tangible

evidence from Ulster Bank for any hypothetical reason for dishonor either. The original/authentic rumor

monger hearsay source of BofAs allegations, on Appellants authentic check has also not been identified,

thereby breaking BofAs evidence chain, although no real adverse evidence exists. Conclusory

allegations that Appellants genuine and authentic check is counterfeit do not constitute evidence to the

contrary. Further, Appellant presented affidavits (Exhibit AAA (R-383-472; R-754-873)) from a perceiving

defense witness (Srinivas Vadde, Appellants husband and the original recipient of the Ulster Bank check)

who was in direct contact with the original issuer of the check (Joseph Sanusi, the Former Governor of

the Central Bank of Nigeria) and who is competent to testify/state from personal knowledge in support of

Appellants claims, under the best evidence rule of the Civil Practice Act, pursuant to O.C.G.A 24-5-1,

O.C.G.A 24-5-2, and/or O.C.G.A 24-5-3, thus maintaining the chain of evidence, which is not hearsay.

III. STATEMENT OF THE CASE

Appellee filed an invalid suit on contract around 4/14/06. Appellant filed a Motion to Dismiss on

4/28/06 (R-13-23) and amended it on 6/1/06 (R-52-76). It was erroneously denied on 7/5/06 (R-97-98).

Appellant filed an amended answer & counterclaim on 7/26/06 (R-119-183) and amended it on 10/13/06

(R-383-472). Appellant filed her Motions for Discovery (R-101-103), related Supplements (R-231-238),

and Notice to Produce (R-473-483), on 7/14/06, 9/5/06, and 10/26/06 respectively, which Appellee failed

to honor. This necessitated Appellants filing of additional interrogatories and requests for admissions

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around 8/5/06 (R-204-220) and 9/5/06 (R-239-257; R-258-279), which largely went unanswered too.

Around 9/18/06, Appellant moved Court for an order compelling discovery (R-325-341) which was

unjustly denied on 1/16/07, (R-747-750), while granting Appellees protective order to hinder discovery

(R-280-324). Appellant also filed a Motion for Sanctions against Bank of America (BofA) around 11/21/06

(R-560-594) which was denied on 1/16/07 (R-747-750). Appellant filed a Motion in Limine to Exclude

Prejudicial Hearsay Information and Evidence (R-363-376) and Motion in Limine to Disqualify Witnesses

of Appellee (R-346-362) around 10/4/06, which were temporarily denied around 1/16/07 (R-743-746) for

reconsideration and granting before trial with preserved objections raised therein, although there was no

trial of this case. Appellee filed for Summary Judgment on 11/17/06 (R-505-559) and Appellant issued a

rebuttal on 12/5/06 (R-625-690). Appellant filed a Motion for Judgment on Pleadings on 12/4/06 (R-608-

611) which was denied on 1/16/07 (R-743-746).

Appellant filed her Motion for Summary Judgment (hereon referred to as MSJ) (R-754-873) around

2/22/07 and her rebuttal to Appellees comments (R-878-902) on 3/21/07, which were held in abeyance

until 2/4/09, to unjustly procrastinate case and harass her. During the course of this case since 4/06,

Appellant filed numerous Responses/Rebuttals, to each and every claim and Motion of Appellee, which

are part of the record (R-13-45; R-52-76; R-82-96; R-119-203; R-325-341; R-377-382; R-499-502; R-560-

594; R-595-607; R-625-690; R-693-697; R-710-717; R-718-721; R-722-724; R-726-731; R-732-740; R-

754-873; R-878-902; R-903-914; R-920; R-923-924). Appellant also filed a Motion to Strike BofAs

affidavits based on hearsay without personal knowledge of affiants (R-618-624; R-726-731). However,

Appellants said MSJ was unjustly denied and Appellees said MSJ was granted around 2/4/09 (R-915-

916). Appellant filed a notice of appeal around 2/19/09 (R-1-4) and amended it (R-5-8) on 3/16/09.

Appellant filed a thorough Appellate Brief addressing all case issues on 5/26/09, but upon court order

of 8/13/09 (asking for an abbreviated version) submitted another concise version on 8/21/09. The Judges

from the Court of Appeals however overlooked the record of this case (R-1-924) and rendered their

interim opinion affirming lower court rulings on 11/20/09 while asking Appellant for details again (the

same details which they chose to ignore earlier when presented in her detailed appellate brief dated

5/26/09, and which are also part of the record in her Motion for Summary Judgment (MSJ) (R-754-873; R-

878-902) and rebuttal to plaintiffs MSJ (R-625-690)). The Court of Appeals judges did not base their

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decision on evidence and objectivity, but on whims and attempted self-serving hearsay (which is in fact a

euphemism for their blind, unjust, prejudicial, and imprudent presumptuous support for lies from Bank of

America (BofA)). Appellant submitted her Motion for Reconsideration (MFR) dated 11/30/09 to Court of

Appeals based on Rule 37(e) of that court, and issued a point to point rebuttal of each and every issue

raised in its opinion dated 11/20/09. Unfortunately, the Court of Appeals turned a blind eye to her

requests and denied her MFR on 12/09/09, and simply chose to ignore her points while continuing to harp

on its speculative non issues, without any evidence to corroborate any of its statements anywhere in the

record (R-1-924). Appellant then filed her timely Notice of Intent to file for Certiorari to the Georgia

Supreme Court on 12/14/09.

Appellant is currently Petitioning for a Writ of Certiorari with this Honorable Court since it is

abundantly clear from the interim opinion document dated 11/20/09, that the judges of the Court of
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Appeals applied inapplicable/invalid case law (not applicable to 3 party checks or banking transactions

in this case where there was no jury trial or bench trial), and have not read the record of this case; for the

issues (or non issues) they raised have already been addressed/resolved by Appellant in the record, and

it is impossible to deny Appellants requests presented in her Appellate brief and the record, based on

logic, human/humane conscience, reasonableness, commonsense, already cited authority, and the

authority of her own persuasive logical arguments in the record and consequent precedence being set by

her own case.

Appellant contends that the Cobb Court and Court of Appeals erred by acting prejudicially and

unreasonably, and abused their judicial discretion by violating appellants Constitutional Rights, especially

her First Amendment Right to Protest. Appellant objects to judgments of 2/4/09 and opinions of 11/20/09

and 12/9/09, as they are contrary to justice, and involved illegal admission of prejudicial hearsay evidence

on the authenticity of Appellants check in a self serving manner based on an inadmissible conclusory

allegation, despite her objections to Court, while baselessly excluding evidence favorable to Appellants

claims on the same issues. Appellant also contests that the Cobb Court made numerous errors of law

applying inapplicable case law to Appellants case, by presuming that BofA could recover $42,200.96

principal and interest from her even though Appellant owes nothing to it. The Cobb Court erred by

dismissing appellants Counterclaim against BofA for around U.S $344,876.54+. Since there was no trial,

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there are no trial transcripts. The record consists of written motions and rebuttals. There are also no

known transcripts from the motions hearing on 12/18/06. Appellant has shown that there is no fact or

issue to be determined and that she is entitled to judgment on her counterclaim for around $344,876.54 to

$500,000+ against BofA as a matter of law, for judicial economy and justice.

IV. (A) STATEMENT OF JURISDICTION

Pursuant to Rule 19 of the Supreme Court of Georgia, the Supreme Court of Georgia, rather than the

Court of Appeals has jurisdiction of this case on appeal for the reason that jurisdiction is not specifically

conferred upon the Court of Appeals by Article VI, Section V, Paragraph III of the Georgia Constitution of

1983, and jurisdiction is therefore in the Supreme Court of Georgia pursuant to Article VI, Section VI,

Paragraphs II and III and/or IV and V, of the Georgia Constitution of 1983, unless the Cobb Court

reverses its judgments of 2/4/09 prior. O.C.G.A 5-6-15 also states that the Writ of Certiorari shall lie

from the Supreme Court to the Court of Appeals as provided by Article VI, Section VI, Paragraph V of the

Constitution of this state.

IV. (B) ENUMERATION OF ERRORS

1. Appellants MSJ (R-754-873) should have been granted and Appellees MSJ (R-505-559) should

have been denied: The issue of insufficiency of evidence to grant Appellees MSJ was raised in

Appellants MSJ (R-754-873) and Rebuttal on the issues (R-878-902), and Objections raised in

Pleadings as detailed in Section III, above. Appellants rebuttal to BofAs MSJ (R-625-690) completely

defeated its case and bogus affidavits. Appellee submitted no written response to Appellants rebuttal

dated 12/2/06 within 30 days, thereby granting Appellants claims by default, as per Rule 6.2 of Uniform

State Court Rules and O.C.G.A. 9-11-55(a). Court of Appeals also erroneously ignored the portions

of the record in Appellants MSJ (R-754-873) that clearly show that she did not sign a signature card

specifically agreeing to BofAs presented undisclosed disclosures document, nor waived notice of

dishonor or her right to protest. The judges have also not addressed the unreasonable and

unconscionable aspects of BofAs agreement, as pointed out by Appellant in Section VI of her

Appellate brief referring to the relevant portions of the record where these aspects are clearly

enunciated (R-383-472; R-754-873; R-878-902). So, since there is no evidence sufficient to create a

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genuine issue, all other disputes of fact are rendered immaterial. Holiday Inns v. Newton, 157 Ga. App.
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436 (278 S.E. 2d 85) (1981) . More reasons are given in Sections VI-XVIII later.

2. Appellants Motion for Judgment on Pleadings (R-608-611) should have been granted: Appellant

showed in her motion and rebuttal to BofAs response (R-710-717) that its pleadings do not validly deny

or dispute her allegations and claims against it. Hence they were to be regarded as true even then by

around 12/04/06. Rolling Pin Kitchen Emporium, Inc. v. Kaas, 241 Ga. App. 577, 578, 527 S.E.2d 248,

249 (1999). Appellant's claims and defenses had been established as a matter of law and no genuine

issue existed against her. Further, the record contains no responsive pleading by Appellee to

Appellants answer and Counterclaim (R-383-472) anyway.

3. Appellants Motions in Limine (R-363-376; R-346-362) should have been granted: Appellant had

protested, objected, and moved court with cogent arguments throughout the record (R-passim), to

exclude prejudicial hearsay information pertaining to BofAs conclusory allegations/labels about the

checks in this case being fraudulent or allegedly being returned due to fraud (without returning the

check), pursuant to the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S

Constitution, and Georgia Constitution. It was error for BofA to use its fictitious doubts from past based

on rumor/hearsay on Nigerian businesses to generally apply blanket speculation adversely on

appellants check in a prejudicial manner, although such speculation was unwarranted and unjustified

here. This case involves reputed Nigerian and International bankers and does not involve any 419

scammers, and BofAs/lower courts allusion to some generic 419 schemes to justify BofAs speculation

and paranoia is unjustified. One must wonder why payments received by American companies such as

Exxon/Mobil, Texaco (or other Oil companies from Texas) etc., which do business with Nigeria & OPEC

(Organization of Petroleum Exporting Countries) are exempt from being branded with speculation of

419 schemes when they also received their payments from the same Mr. Sanusi that Appellants

husband had received payment from. It must be noted that the Court/Judges are welcome to contact

Mr. Joseph Sanusi, if needed, to verify the authenticity of the check in this case and Mr. Sanusi could

gladly testify/state about its integrity and could shed light on how he himself worked in coordination with

the blessings of the Secret Services of many countries, including the United States, when he

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All citations in this Writ are from Appellant, Subbamma Vadde, Lexis Nexis 2009 and Westlaw
2009, with permission from Thomson Reuters/West.

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dispatched checks for payment on behalf of his Nigerian Government, through corresponding Banks.

However, although Mr. Sanusi, the issuer of the check in this case is a prominent Nigerian and African

Banker, he claims that the checks he issued in the past have at times been the target of

discrimination/rumors/hearsay and prejudice from some banks such as BofA, due to him being Black

and African, a disadvantaged minority considered imperfect, and due to the age old racial slave-era

animosity/differences between Whites and Blacks in general. BofAs case is therefore based on

rumors/speculation and prejudicial hearsay remarks from unknown and unaccountable sources.

Rumors from unknown sources are inadmissible hearsay. Plemans v. State, 155 Ga. App. 447, 270

S.E. 2d 836 (1980). Other citations, including Opinions of The United States Supreme Court

suggesting that such hearsay is inadmissible are; Clauss v. Plantation Equity Group, Inc. 236 Ga. App.

522, 512 S.E. 2d 10 (1999); Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993);

General Electric Co. v. Joiner, 522 U.S. 136 (1997). Therefore, Appellants Motions in Limine should

have been granted. McMillen v. 84 Lumber, Inc. 538 Pa. 567, 569, 649 A. 2d 932, 933 (1994). Further

justification is given in Appellants rebuttal to BofAs responses (R-595-607).

4. Appellants Motion to Compel Discovery (R-325-341) and Appellants Motion for Sanctions (R-

560-594) should have been granted: Appellee should have been sanctioned for failing to comply with

State & Federal Rules of Civil Procedures, for failing to respond completely to Appellants first

interrogatories, for giving evasive, false and self contradictory answers to first request for admissions,

and for failure to respond to second interrogatories and requests for admissions, and for abusing the

judicial process. It is unjust to make adverse decisions against Appellant without proper discovery and

answers from BofA on crucial questions raised in her interrogatories and requests for admissions (R-

239-257; R-258-279), calling for the reversal of 2/4/09 decisions. Bullard v. Ewing, 158. App. 287, 279,

S.E. 2d 737 (1981). Since the information sought did not fall within guidelines for a protective order, it

would not have been error to compel its discovery and grant sanction for non compliance. Ambassador

College v. Goetze, Cert. denied, 444 U.S. 1079, 100 S.Ct. 1029, 62 L. Ed. 2d 762 (1980). With respect

to Court of Appeals issues raised in Pages 7 & 8 of its opinion dated 11/20/09 on denial of discovery

and consequent harm to Appellant; Appellant sought answers from BofA on the pertinent issues of

authenticity of her check, alleged dishonor, and notice of dishonor, answers & admissions to which if

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provided, upon discovery being allowed and compelled by Court would have further corroborated the

facts that BofAs case is based on use of illegal conclusory allegations and inadmissible hearsay, and

that Appellants check was not legally dishonored or returned to Appellant, is not fraudulent, was not

returned by Ulster Bank, and that check was not presented to Ulster Bank upon deposit in 2004. The

harm caused to Appellant by Courts actions on preventing discovery has been adequately described in

her Motion for Summary Judgment (R-754-873), with further details provided in her affirmative relief

claimed in her counterclaim (R-383-472) & rebuttal to Appellees MSJ (R-625-690; R-754-873; R-878-

902), as per Brown v. Brewer, 237 Ga. App. J 45, 148 (3) (5 13 SE2d 10) (1999). Details of such harm

were also provided by reference in Sections XV & XVI of her Appellate brief dated 8/21/09, and in detail

in Sections XV & XVI of her first Court of Appeals brief dated 5/26/09. Further compelling arguments

and citations are given in Appellants Motion for Sanctions and related rebuttals (R-732-740).

5. Appellants Motion to Record All Proceedings (R-344-345) should have been granted and/or

Appellants Request for Waiver of Motions Hearing (R-693-697; R-722-724) should have been

granted: It was error for Court to ask Appellant to appear for such hearing despite Appellant having

submitted written arguments in her Motions addressing issues, which are legally deemed to have been

heard without having to physically appear for a hearing, within the meaning of O.C.G.A 9-11-56.

Appellant had already responded with a Motion for Judgment on Pleadings around 12/4/06, and hence

been heard and didnt need to attend any hearing. Legal citations for this are presented in her

Request for Waiver of Hearing, (R-693-697) & Request for Waiver of Motions Hearing, (R-722-724),

and rebuttals to Appellees responses (R-499-502). It is not error for the court in a case to rule on a

summary judgment motion without an oral argument hearing, where neither party requested such a

hearing, as here. Val Preda Motors v. National Uniform Serv. 195 Ga. App. 443, 393 S.E. 2d 728

(1990). Not only was a hearing unnecessary, but it was error for court to deny the Motion to Record All

Proceedings while simultaneously requiring a hearing. Nevertheless, Appellant made general and

specific oral objections to hearsay and speculation in court as in her writings, by reference, on 12/18/06.

However, she was informed by Judge Irma Glover of the Cobb Court that she would not read/go

through the written Motions and responses or Rebuttals of Appellant. Therefore, adverse decisions

against Appellant in the past without reading her writings, were erroneous & prejudicial. Further,

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Appellant was discriminated against at hearing and prejudicially asked as to how long she had been in
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the U.S, an issue that ought not to concern the Court for a mere 3 party international check cashing

transaction; notwithstanding the fact that Appellant is a legal immigrant of the U.S and her

husband/family has honorable high level Political connections in the United States of America. These

collective events and court actions indicate gross errors and abuses to perpetuate whimsical dictates;

not based in objectivity, logic/reason; but based on bias and prejudice. As for authority that prohibits a

trial court from scheduling a hearing on a MSJ even though one has not been requested, the

Appellants arguments and objections in the present case are enough/sufficient precedent setting

authority to challenge the erroneous actions of the trial court; as they Appeal to commonsense and the

judges conscience, as well as sensibilities of reasonableness in the current case, where a depositor

must not be needed to expend further unavailable resources on flying in overseas witnesses or

transcriptions/hearings/trials in such a financial case when already seeking financial relief in the case.

6. Appellants Motion to Dismiss (R-13-23; R-52-76) should have been granted: BofAs action was

baseless and frivolous, and in violation of laws of the U.S Uniform Commercial code (UCC) such as

UCC 4-401, UCC 4-402, and UCC 4-302, discharging Appellant from liability in this case. BofAs

suit on contract violated Georgia laws governed by Title 11, Article 3, such as O.C.G.A 11-4-402,

O.C.G.A 11-3-502, O.C.G.A 11-4-301, and O.C.G.A 11-4-302, applicable to checks. BofA also

exercised insufficient service of process, failed to state any valid claim on which relief could be granted,

used inapplicable contract law for a negotiable instrument, failed to join the maker bank and

international issuers of the check, and failed to give appellant timely notice of dishonor. Therefore,

Appellants Motion to Dismiss should have been granted. Further reasons are given in the said Motion,

related rebuttals to Appellee (R-82-96), and in other parts of this Writ.

7. Appellants Counterclaim (R-383-472) should have been granted: Since Appellant has sought

affirmative relief with sufficient grounds in her pleadings, her counterclaim must be granted. Brown v.

Viberty County, 247 Ga. App. 562, 544 S.E.2d 738 (2001). The issue of negligence of BofA causing

injury, damage and harm to Appellant, is also clearly elaborated in Sections II & III of her Appellate

brief and her MSJ (R-754-873). The only way this case and Appellants counterclaim can now end is if

BofA awards financial relief on her counterclaim, or if Appellee is shut down as a bank/ceases to exist.

Page 13 of 30
In general, if a counterclaim has been pleaded by Appellant prior to any request to dismiss, the

counterclaim cant be dismissed against Appellants objection unless it can remain pending for

independent adjudication by court, or through a settlement/judgment by the judge(s) in favor of

Appellant as in this case. Stanley v. Stanley, 244 Ga. 417, 260 S.E.2d 328 (1979). Other reasons are

presented in Sections VI through XVIII of this Writ.

8. State court used invalid case law in its judgments (R-915-916) that is not applicable to

Appellants case: The case law used to support decisions against Appellant was Laus Corp. v.
rd
Haskins, 261 Ga. 491 (1991). Ironically, this case law does not pertain to any 3 party check and is not

only inapplicable to justify decisions of 2/4/09, but in fact goes to prove several of Appellants claims

against bank. (a) There, the Haskins brought action as patrons of a restaurant, when robbed and

injured by two men in its adjourning parking lot. The trial court granted summary judgment to the

restaurant, the Court of Appeals reversed, and the Supreme Court of Georgia granted certiorari and

reversed the Court of Appeals. However, the Haskins case neither involved a case on contract by a
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plaintiff Bank, nor involved any 3 party international check or any banking transactions, with a midnight

deadline to follow, according to the (UCC), and hence is inapplicable as any standard in this case.

Besides, the plaintiff did not prevail in that case. If there is any analogy to adopt from that, it is that the

plaintiff, BofA should not prevail in this case either. (b) On issues of claims of negligence involved in

both cases, negligence by restaurant was claimed by plaintiff whereas negligence by bank is claimed

by Appellant in her counterclaim. Bank is the negligent party here and has no claim of negligence

against Appellant since it is precluded by her defense of estoppel (see Section XIV of this Writ). First

Ga. Bank v. Webster, 168 Ga. App. 307, 308, S.E.2d 579 (1983). The aggrieved party here is the

Appellant, and not BofA. As per Sutter v. Hutchings, 254 Ga. 194, 196-197 (327 S.E.2d 716) (1985)
th
(quoting Prosser, Law of Torts, 4 ed., 30 (1971)), the traditional elements of a negligence case are:

(1) A duty, or obligation, recognized by law, requiring the actor to conform to a certain standard of

conduct, for the protection of others against unreasonable risks, (2) A failure on his part to conform to

the standard requiredClearly, standards in (1) and (2) were violated by BofA when it accepted

Appellants check and/or honored it, and did not give a timely notice of dishonor by the midnight

deadline as mandated by UCC guidelines (see Section XII of this Writ); (3) A reasonable close causal

Page 14 of 30
connection between the conduct and the resulting injury, (4) Actual loss or damage resulting to the

interests of the other; Clearly, criteria in (3) and (4) are also satisfied in favor of Appellant because

abusive litigation by BofA caused her to file her counterclaim against BofA (see Sections XVII and XVIII

of this Writ). Wrongful dishonor caused by BofA is also a tort for which punitive damages can be

assessed. Fidelity Natnl. Bank v. Kneller, 194 Ga. App. 55, 390 S.E.2d 55 (1989). BofAs negligence is

clearly flagrant and established objectively in Appellants MSJ (R-754-873), while negligence in

Haskins case was open to subjective interpretation in other non-banking issues. More reasons are

detailed in Sections VI through XVIII, especially XVII & XVIII.

V. ARGUMENT AND CITATION OF AUTHORITY/STANDARD OF REVIEW

1. Discovery rulings: Control over discovery including the imposition of sanctions is reviewed for "clear

abuse of discretion." Time Warner Entertainment Co. v. Six Flags Over Georgia, 245 Ga. App. 334,

350 (3) (b) (537 SE2d 397) (2000). It was abuse of discretion for Cobb Court to hinder discovery

favorable to Appellant by exhibiting a county based bias towards BofA. It was abuse of discretion to

deny Appellants Motion to Compel Discovery (R-325-341) and Motion for Sanctions (R-560-594) and

to grant an unjustified protective order to Appellee (R-747-750) to mask its ignoble acts.

2. Evidentiary ruling: Decision to admit or exclude evidence including relevant evidence is reviewed for

abuse of discretion. Dept of Transp. v. Mendel, 237 Ga. App. 900, 902 (2) (517 SE2d 365) (1999).

Appellants Motions in Limine to Exclude Hearsay (R-363-376), Disqualify Witnesses of Appellee (R-

346-362), and Suppress BofAs Fabricated Evidence on authenticity of Appellants check (R-377-382)

filed around 10/4/06, should have been granted immediately upon filing. It was error/blackmail to

attempt to preempt or fabricate bogus evidence through abuse of discretion by hibernating/holding

the Motions in abeyance in past, even though there is no evidence or real qualified witness against

Appellant.

3. Construction of a contract: Reviewed de novo on appeal. Question of law for the trial court unless

after the application of the rules of construction, the contract remains ambiguous. Sagon Motorhomes

v. Southtrust Bank of Ga., N.A., 225 Ga. App. 348, 349 (484 SE2d 21) (1997). This case involves a
rd
mere 3 party international check cashing transaction and does not pertain to any contract. Appellant

has no contract with BofA. This case on contract was filed to harass Appellant and her husband who

Page 15 of 30
are legal U.S immigrants who could have cashed this check in other countries without undue

harassment or delay (including the European Union or India, where they are from originally); had

BofA not messed up this simple check cashing transaction. Further points are in Sections VI-XVIII of

this Writ, especially in Section VIII.

4. Grant of summary judgment: On appeal of a grant of summary judgment, the appellate court must

review the evidence de novo to determine whether the trial court erred in concluding that no genuine

issue of material fact remains and that the party was entitled to judgment as a matter of law. Rubin v.

Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998). Evidence was lacking and insufficient to

support Judgments of trial court in this case. Trial court abused its discretion and the court system

with whimsical dictates, as its judgment was against weight and/or Preponderance of evidence as

shown in Appellants MSJ (R-754-873). For an inference to be sufficient to create a genuine issue of

fact precluding summary judgment for Appellant, it must be reasonable and must amount to more

than mere speculation, conjecture, or possibility, which is not the case with BofA here (R-505-559).

Kmart Corp. v. McCollum, 2008, 290 Ga. App. 551, 659 S.E.2d 913, certiorari denied. Based on

Graham Bros. Const. Co., Inc. v. Scaboard Coast Line R. Co., 1979, 150 Ga. App. 193, 257 S.E.2d

231, even though Cobb Court and Court of Appeals erred in their judgments by improperly ignoring

written arguments and points proving Appellants claims in this case, the Supreme Court of Georgia

can and must now reverse those judgments and grant Appellants requests upon consideration of the

entire written record (R-1-924), expanded with the current Writ. Not only does Appellant not bear the

burden of proof at any trial in this case, but there can be no trial here since Appellant filed Motions in

Limine to win her case with her MSJ on her counterclaim without trial, and need not conclusively

prove the opposite of each element of the non-moving partys/BofAs case. Corbitt v. Harris, 182 Ga.

App. 81 (354 S.E.2d 637) (1987). So, issues may be decided by this court in Appellants favor since

this is a plain and palpable case where reasonable minds cannot differ as to the just conclusion to be

reached.

Hearsay, opinions, and conclusions in BofAs affidavits are inadmissible as evidence on

Summary Judgment. This is supported by Judgment and case law in Langley v. National Labor

Group, Inc., 2003, 262 Ga. App. 749, 586 S.E.2d 418. It is also clear that even if Appellee had

Page 16 of 30
claimed a dishonor of Appellants check (which has now turned out to be only hypothetical),

dishonored checks cannot be criminal or tortious when drawer does not know or intend check to be

dishonored at time it is written; as is the situation with Appellant here. Duffy v. Landberg, 133 F3d
th rd
1120 (8 Cir. 1998). The check in this case is a 3 party check written by someone else other than

the Appellant or her husband, and is also not written from Appellants or her husbands account. The

check was also assured to be honorable before being passed to Appellant and Appellant believes the

check is honorable to the best of her personal knowledge. Besides, BofA already

honored/cleared/paid the check on 6/14/04, as per evidence presented and O.C.G.A 24-4-23.1.

So, decisions of lower courts from 2/4/09, 11/20/09, and 12/09/09 must be reversed.

5. Trial court's findings of fact: Reviewed under clearly erroneous standard. City of McDonough v.

Tusk Partners, 268 Ga. 693, 696 (492 SE2d 206) (1997). The Cobb Court based its findings on
rd
hearsay, speculation, whims, rumors, erroneous standards, and case law not pertaining to any 3

party checks. The Court of Appeals therefore erred in affirming Cobb Courts judgments from 2/4/09.

6. Question of law: De novo or independent review on appeal. Since no deference is owed to the trial

court's ruling on a legal question, the "plain legal error" standard of review is applied. Suarez v.

Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000). The Cobb Court and Court of Appeals

have not addressed the question of law as to what law/laws provide(s)/constitute(s) proper metric(s)
rd
or measure(s) and criteria for honoring/dishonoring an international 3 party check, especially after it

has already been honored before, as done here. There is no clear criteria or metric from lower

Courts that conclusively states or classifies as to how, when, where, and why a said check can be

objectively considered to be determined fraudulent. The standard of review is whether there is any

clear and convincing evidence that Appellants check can be dishonored after being honored and if

so, on what grounds can this be done. There is no such evidence here. Trial court rests on an
rd
erroneous legal theory, irrelevant case law and contract law (inapplicable to 3 party international

checks), and on the presumption that checks can be dishonored at the subjective whims and dictates

of people lawlessly, and without reason. With all due respect to the legal system and judges in

general; clearly, conjectures and whims of bankers or arbitrarily subjective whimsical decisions

without objectivity, logic/reason, even if they are from some court officials or judges, cannot be used

Page 17 of 30
as criteria for check clearance in an international and global economy that ought to depend on sanity,

logic, tangible evidence, and reason. Therefore, Appellants MSJ (R-754-873) must be granted

immediately.

Further points in substantiation of arguments in the above six points are presented in Sections VI

through XVIII of this Writ and in the referenced motions herein.

VI. THEORY OF RECOVERY FOR GRANTING APPELLANTS MSJ

Appellant sought recovery of $1,376.54 wrongfully debited from Appellants account. She also sought

recovery of around $344,876.54 to $500,000+ for proximate damages, costs, pain/suffering, loss of

employment opportunities due to BofAs libel/slander/tarnishing of her reputation, and other nuisance

factors caused by BofA during its abusive litigation due to the wrongful dishonor of Appellants check,

based on her counterclaim and pleadings against bank (R-754-873; R-878-902). BofA initially

accepted/honored Appellants check deposited on 6/12/04 by 6/14/04. BofA thereafter wrongly

dishonored Appellants legitimate check/deposit on 7/8/04 based on unjustified speculation and

inadmissible hearsay without any valid reason or tangible evidence. BofA also did not send Appellant any

timely notice of dishonor, by the midnight deadline mandated by law (by 6/14/04), before debiting.

Therefore, Appellees action has no cause and violates U.S, Georgia, and international laws of

commercial code. Appellant has no contractual obligation with Appellee that is valid for it to claim any

recovery nor does Appellant have any contract with Appellee to provide it goods or services for a

negotiable instrument constituting capital/expenses. Appellant is therefore discharged from any liability in

this case and Appellee is indebted to Appellant and liable to pay Appellant in full for the check deposited

and for having abused the justice system through abusive litigation.

VII. STATEMENT OF FACTS

Appellant deposited an international check for 35,000 from Ulster Bank, OConnell St., Dublin,

Ireland into her BofA account# 3275278929 on 6/12/04. Appellant believes the check is legitimate and

honorable, as assured by its issuers. The check was received by her husband from Ulster Bank through

Mr. Joseph Sanusi, the then Governor of the Central Bank of Nigeria (R-383-472; R-754-873).

Incidentally, Mr. Joseph Sanusi is a prominent and reputed banker educated in England, with over 20

Page 18 of 30
years of banking experience by around 2004 who has overseen Millions and Billions of dollars in

payments to world famous Oil and/or Gas Companies, as well as to Contractors of the Federal

Government of Nigeria, including but not limited to Exxon Mobil, Chevron Texaco, BP, and Shell, etc. Mr.

Joseph Sanusi and the Federal Government of Nigeria, along with the Central Bank of Nigeria, through its

corresponding banks, have extensive experience consummating financial transactions in the U.S and

abroad, including with several world governments (please see Official Press Releases on Joseph Sanusi

from Central Bank of Nigeria, http://www.cenbank.org/). Although it is unreasonable to expect Appellant

to incur any further costs in this case to fund witnesses to fly in from overseas to satisfy BofAs or the

lower courts curiosity in this matter (even though there is no adverse evidence in any tangible manner

against Appellants check that was deposited), or to expect defense witnesses to fly in from overseas to

testify for matters of a simple check clearance transaction, Joseph Sanusis name was also given as a

possible defense witness to trial court and the scope of his testimony on the authenticity of the check was

also stated clearly (R-196-201). Mr. Sanusi, if needed, could gladly elaborate on his connections with the

Secret Services of various countries, including that of the United States, in the discharge of his duties as

Former Governor of Central Bank of Nigeria and checks he used to issue or payments that he made to

contractors of his government, including to Appellants husband, Mr. Srinivas Vadde, and can expound on

the authenticity of the check he issued, should the law provide with funding for Appellant and the

Honorable Court and the Judges be willing to grant and provide funds for Mr. Sanusi to come and testify

in this regard in favor of Appellant if necessary.

Well, BofA accepted Appellants check on 6/12/04 and honored it to credit/pay her account in the sum

of $40,705.00, by 6/14/04. BofA however debited Appellants deposit account between 7/8/04 and

7/23/04 claiming return of Appellants check deposited on 6/12/04. BofA has not presented any tangible

evidence that conclusively proves that Appellants check was ever presented to the maker bank (Ulster

bank of Ireland) or that maker bank dishonored Appellants check. BofA has presented no proof that any

dishonor of the check it alleges is based on anything other than hearsay/speculation from

unknown/unidentified original root sources. BofA has no witnesses with first hand personal knowledge

disclosed in discovery, corroborating that they were the original decision makers who decided to dishonor

Page 19 of 30
check after it was credited/paid on 6/14/04. There is no evidence from maker bank to irrefutably justify

dishonor and there is no conclusively demonstrated default of Appellant in this case.

BofA has not presented any tangible evidence with a postmark or proof of mailing with a receipt for

certified mail or overnight express mail, for any notice of dishonor it claims to have mailed to Appellant by

the midnight of 7/9/04. BofA did not provide any notice of dishonor by the midnight of 6/14/04. BofA has

not returned the original check to Appellant by close of discovery around 2/9/07 and Appellant has not

consented to accept an image of the item (check) as a return of the item. Appellant didnt get any notice

of dishonor from BofA or Ulster Bank allegedly mailed by 7/9/04 and BofA hasnt proved to the contrary.

It is unrealistic and unreasonable for any Appellant to be expected to prove a negative or non-occurrence

of events such as the absence of dishonor by Ulster Bank or absence of issuance of a timely notice of

dishonor by BofA, even when the truth is that the Ulster Bank did not dishonor check and BofA did not

give such a notice of dishonor, because no Appellant can possibly present anything physically as proof of

the material absence of an event. BofA on the other hand could and should have presented proof of

mailing, to tangibly prove the presence of occurrence of the event of mailing notice of dishonor if such

event had occurred at all, but did not since the event didnt occur. So, uncontroverted by any proof of

mailing from personal knowledge of any disclosed witness by close of discovery, Appellants statement

from her personal knowledge suffices to act as proof of the absence of BofA giving any timely notice of

dishonor by 7/9/04. None of Appellees witnesses, whether Crystal Frierson or Michael Ware, could

possibly have any personal knowledge on whether BofA gave any timely notice of dishonor by 7/9/04 or

as per O.C.G.A 11-4-301 and/or O.C.G.A 11-4-302, because they hadnt personally dishonored check

nor mailed such notice. Appellant has no burden of proof to present any defense to BofAs invalid claim

for recoupment from her, for a check that has not been proven to be counterfeit at all, notwithstanding the

fact that BofA never gave any timely notice of dishonor and had no right to charge back her account

under the circumstances of this case. So, Appellant is already discharged as per Section I of her MSJ.

VIII. APPELLANT HAS NO CONTRACTUAL OBLIGATION/LIABILITY

Appellee has no contract with Appellant to pay it anything. BofAs deposit agreement calling for

waiver of notice of dishonor and protest and claiming right to debit depositors accounts for any reason

(no matter how baseless/arbitrary/whimsical/speculative/self-serving the action is and when it takes place,

Page 20 of 30
as in this case), presented as Exhibit B of its MSJ, is unconscionable, unreasonable, and illegal as it was

unilaterally and deceitfully prepared without Appellants consent (was not signed up for by Appellant with

the signature card with her opening of BofAs account in 2001), and is null and void. The agreement has

been completely abrogated and has no force of law as explained in Section II of Appellants brief and

MSJ (R-383-472; R-754-873; R-878-902). BofAs signature card states no contractual obligation for

Appellant with BofA, nor any Statutes and laws of Georgia or the U.S., and deceitfully omits mention of

unilateral modification of its terms and conditions. BofAs deposit agreement in 2006 (when this case was

initiated) also did not call for Appellants waiver of protest or notice of dishonor. Bank cannot enforce

agreement permitting it to act in violation of reasonable commercial standards. Perini Corp. V. First
th
Natl Bank, 553 F.2d 398 (5 Cir. 1977). Additional details on this issue are also given in, Measure of

damages for breach of duty by a bank in respect to collection of commercial paper, 67 ALR 1511.

Further, BofAs deposit agreement of 2004 was terminated by Appellant earlier (R-194-195; 239-257;

258-279; 383-472; 625-690; 754-873; 878-902) and also ceased to exist by closure of Appellants

account in 2004 (as per Section 24, page 21 of the agreement) before this case was initiated in 2006.

Generally speaking, rescission is in toto as it abrogates contract/agreement not partially but

completely. Lyle V. Scottish Am. Mfg. Co., 122 Ga. 458, 50 S.E. 402 (1905). So, as per O.C.G.A 13-

5-7, Appellee cannot claim any recovery from appellant due to rescission or release on BofAs

agreement.

IX. GOODS/SERVICES NOT NEEDED FOR CASHING CAPITAL CHECK

This case is not about the enforcement of an arbitrary condition of supply of goods or services for

every check deposited in every bank in the world. The said check here was obtained by the issuer as a

loan from his issuing sources (and not as a loan from BofA) and issued as a capital for reimbursement of

expenses. So, Appellees issues of goods and services are irrelevant/immaterial and outside the scope

of this case. Further, according to Article 2(d) of the United Nations Convention on Contracts for the

International Sale of Goods, the convention is clearly stated not to apply to sales of stocks, shares,

investment securities, negotiable instruments or money and commissions. So, Appellant, as

depositor/endorser, is exempt from any arbitrary requirement of sale of goods or services for a check

cashing transaction involving a negotiable instrument as detailed in Section III of her MSJ.

Page 21 of 30
X. APPELLANT IS ENTITLED TO SUMMARY JUDGMENT

Appellee has no right to chargeback in the circumstances of this case. O.C.G.A 11-4-214 becomes

null and void here and is superseded by other UCC provisions of O.C.G.A 11-4-301, and/or O.C.G.A

11-4-302, etc. since chargeback of an honored check is barred by a subsequent wrongful dishonor

without giving a timely notice of dishonor. Therefore, Appellants MSJ must be granted as elaborately

explained in Sections IV & V of her MSJ (R-754-873; R-878-902).

XI. APPELLEE WRONGLY DISHONORED CHECK

Appellee accepted, honored and paid an honorable/legitimate/authentic and valid check into

Appellants deposit account for 35,000.00 on 6/14/04, by virtue of being a depositary bank which is

also a payor bank when it accepts and pays a check or credits a check according to the statutory

definition of O.C.G.A 11-4-105 (2), because it determined it was legitimate and not counterfeit.

Thereafter, Appellee never had any more right to chargeback Appellants account as it is precluded by

statutory laws of O.C.G.A 11-4-301 and/or O.C.G.A 11-4-302. Appellant understands that OCGA

11-4-302 applies to a payor bank but contends that BofA was a payor bank in this case by virtue of being

a depositary bank in this case when it paid Appellant, as established by OCGA 11-4-105(2). What

Court of Appeals had failed to note is that Appellants claim in this case is that BofA cannot abrogate its

responsibilities of a Payor Bank and Statutory provisions of OCGA 11-4-302 when it has already

incurred liabilities according to responsibilities of a collecting bank as per OCGA 11-4-214 provisions

that have to concurrently abide by OCGA 11-4-302 and the meaning of midnight deadline as well as

reasonableness. There was no dishonor by Ulster Bank and there is no proof to the contrary in the

record of this case, and no self serving statement from BofA or any blind jumping onto the bandwagon of

BofAs unsubstantiated claims by any judge, could possibly overcome BofAs insurmountable burden of

proof for Court to find and present any tangible evidence from the record to substantiate any statement of

dishonor by Ulster Bank. Court of Appeals also erroneously ignored the definition of UCC 4-105(2) that

states that a collecting bank such as BofA which is also the depositary bank here is also a payor bank for

the purpose of first paying a customer who deposits a check, even though it might be a collecting bank for

its transaction between itself and the final payor to it, which is Ulster Bank here. BofA cannot simply

choose to charge back checks itself in a self serving manner using conclusory allegations and circular

Page 22 of 30
reasoning, or be only a collecting bank but not be a payor bank, since that would be a dysfunctional bank

that takes in checks as deposits from customers but pays out nothing in return to them. So, the alleged

dishonor of said check was wrongful.

XII. APPELLEE FAILED TO GIVE TIMELY NOTICE OF DISHONOR

As provided by UCC 4-302 and O.C.G.A 11-4-302, payor/depository banks like BofA are required

to settle or return checks quickly. The bank whether or not it is the depositary bank, must settle for any

demand item/check by midnight of the banking day of receipt of the check, which in this case happens to
th
be the midnight of June 12 , 2004. So, since BofA did not give a timely notice of dishonor, it is

responsible for paying for the check deposited. Clements V. Central Bank, 155 Ga. App. 27, 270 S.E.2d

194 (1980) also proves applicability of O.C.G.A 11-4-202 (a) and O.C.G.A 11-4-202 (b) in favor of

Appellants arguments for BofAs liability. The citations of the commercial code that Appellant relies upon,

to assert her defense of failure of Appellee to provide a timely notice of dishonor, are sections of

statutes which establish the responsibilities of a payor bank, which is not only a bank upon which a

check is drawn on, but is also a depositary bank, by virtue of O.C.G.A 11-4-105 (2). The position of a

payor bank is a relativistic one depending on the phase of the banking transaction (whether it is the

payment phase or the collection phase), and does not exclude a depositary bank. The events in the

check clearance process in this case that justify Appellants stand and claims as per applicable O.C.G.A

11-4-105 definitions, especially O.C.G.A 11-4-105 (2), is depicted in Figures 1 and 2. Further details

are given in Section IV.B of Appellants MSJ (R-754-873; R-878-902).

Figure 1 Bank Payment Process for Negotiable Instrument/Check in This Case

Page 23 of 30
Figure 2 Process of Payment of Depositors Check/Funds from Ulster Bank/Bank of America/Federal

Reserve/FDIC/Bank of Americas Liability Insurance Company

XIII. APPELLEE HAS NO RIGHT OF CHARGEBACK

Clearly, Appellees chargeback and subsequent wrongful dishonor of the check it honored earlier is

illegal here. Its liability to Appellant for wrongful dishonor, lack of timeliness in giving notice of dishonor,

and abusive litigation is explained in Appellants Counterclaim (R-754-873; R-878-902). Appellants not

waiving notice requirements in her depositor contract agreement and the inapplicability of O.C.G.A 11-

4-103 for BofA, and O.C.G.A 11-4-103 supporting Appellants claims, with O.C.G.A 11-4-301 and/or

O.C.G.A 11-4-302 superseding O.C.G.A 11-4-103 provisions, has also been explained in Sections II,

IV, & V, and other sections of Appellants MSJ (R-754-873). Contrary to Court of Appeals Opinion dated

11/20/09, the risk for non-collection on a check due to any inefficient bank procedures or otherwise

remains with the bank (BofA here) and not the depositor (Appellant here). No citation of authority or

Page 24 of 30
Statute proves otherwise. Please note that the provisional clause of BofAs deposit agreement for

credit is also invalid due to the fact that Appellants check was neither returned as fraudulent by

Ulster Bank on 7/8/04, nor did BofA give a timely notice of dishonor and there is no proof in the

record to the contrary as the judges can very well verify by thoroughly reading every part of the record

(R-1-924). BofAs actions also did not comply with OCGA 11-4-214(a), ..bank is liable for any loss

resulting from its delay, as claimed by Appellant in Sections XV and XVI of her Appellate brief & MSJ

(R-625-690; R-754-873; R-878-902) seeking compensation from BofA for its mistakes & abusive litigation.

Court of Appeals erroneously misinterpreted the meaning of final in the statute OCGA 11-4-201(a)

and ignored the fact that final settlement was already made to Appellant by the midnight deadline after

deposit, on June 14, 2004, and Appellant had no risk remaining in this case for any non collection aspects

after the midnight deadline. The case law and statute OCGA 11-4-201(a) cited by Court of Appeals

does not in any way state or suggest that depositors have to wait until their deposited checks are charged

back without reason at any time (for such arbitrary time without specificity, to be construed as the

midnight deadline), or that having to wait until check deposit cases are decided by Courts amounts to a

reasonable time for a depositor to assume risk for clearance of each and every check deposited; since

that would be the most absurd logic and interpretation of the Statutes as was done by Court of

Appeals in the past. Hence, the arguments of the Court as presented in regard to risk of non-

collection being with depositor instead of being upon the bank are not only preposterous and absurd

and unsubstantiated by any Statute quoted by it, but they fail the test of reasonableness under any

humane circumstances of consumer banking across continents with international checks, in this modern

day and age of electronic high speed banking. Further, OCGA 11-4-201 (a) depends on the intent of

the legislature in its enactment as to what the meaning of the word final means when the check is

already finally paid to depositor once (as was done by BofA on 6/14/04), and is also as stated clearly

applicable to banks and its branches as agents, and their events transpiring between collection and

payment activities between collecting bank (BofA) and final payor bank (Ulster Bank); and is not

applicable between the bank (BofA) and depositor (Appellant). Moreover, one cannot clearly brush away

the intent of the legislation of the Statute that states, that a depositary bank such as BofA is also the

Payor bank to depositor, as stated in OCGA 11-4-105(2), which means that there is no risk or burden

Page 25 of 30
on a depositor such as Appellant from any provisional payments once paid by the midnight deadline of

6/14/04, which is final for all practical purposes by any measure of commonsense reasoning for the

meanings of midnight deadline and final to have any significance.

Therefore, Appellee is not entitled to any recovery or chargeback in this case, where it has failed to

have a valid superseding contract, and/or as a depositary bank and/or collecting bank it has failed to send

a timely notice of dishonor after its prior honoring of a check, and/or as a collecting bank it has failed to

present Appellants check to maker bank, and/or has presented no tangible evidence to justify its alleged

dishonor.

XIV. DEFENSE OF ESTOPPEL PRECLUDES BofAS RECOVERY

It is also true that the banking acts of BofA, of receiving Appellants check for deposit on 6/12/04,

performing banking transactions on it, and retaining it, without returning the physical original

instrument/check to Appellant in original form, deprive Appellant the opportunity to use the check with any

other bank. Such irresponsible behavior of BofA as detailed in Section VI of Appellants MSJ is a sign of

its gross negligence.

As required by Georgia Commercial Code Ann. 109A-3508, a notice of dishonor needs to be sent

in a specified time frame to the indorser, as indicated earlier. The failure to give requisite notice results in

the discharge of the indorser of any liability according to Georgia Code Ann. 109A-3502(1)(a).

Clements v. Central Bank of Georgia, 155 Ga. App. 27; 270 S.E. 2d 194270, S.E.2d 194; (1980), also

supports the above arguments in favor of Appellant. O.C.G.A 11-4-302 (a) (1) also makes Bank of

America liable to pay Appellant for the check deposited on 6/12/04. This law clearly states that if an

item/check is presented to and received by a payor bank like BofA (which is also a depositary bank as

well as a payor bank), the bank is accountable for the amount of the demand item (such as the check)

whether properly payable or not, in any case in which it is not also the depositary bank, retains the item

beyond the midnight of the banking day of receipt without settling for it, or whether or not it is also the

depositary bank, does not pay or return the item or send notice of dishonor until after its midnight

deadline. Also, according to Bank S. v. Roswell Jeep Eagle, Inc. 204 Ga. App 432, 419 S.E. 2d 522

(1992), when there is no valid defense alleged by Appellee (as in this case), a payor bank such as BofA is

liable to pay the holder (Appellant here) for amount of check it received. This statutory application of law

Page 26 of 30
is supported by National City Bank v. Motor Contract Co., 119 Ga. App. 208, 166 S.E.2d 742 (1969).

There is also legal precedence that prohibits a bank from debiting a deposit account after initial credit.

This has been cited in Clements v. Central Bank, 155 Ga. App. 27, 270 S.E. 2d 194 (1980); Sabin Meyer

Regional Sales Cop. v. Citizens Bank, 502 F. Supp. 557 (N.D. Ga. 1980); Bleichner, Bonta, Martinez &

Brown, Inc. v. National Bank (In ref. Micro Mart, Inc.) 72 Bankr. 63 (Bankr N.D. Ga. 1987); Landers v.

Heritage Bank, 188 Ga. App. 785, 374, S.E. 2d 353 (1988). Moreover, in Landers v. Heritage Bank, 188

Ga. App. 785, 374, S.E. 2d 353 (1988), neither the banks claim of the Uniform Commercial Code

provisions of O.C.G.A 11-4-212/401, nor the banks claim of its signature card (and in turn their deposit

agreement) constituting a contractual obligation for Appellant/depositor to pay Appellee/bank anything

were effective to relieve the bank in a situation similar to this case.

So, essentially, the Appellee/BofA, by delaying the mailing of the bank statement for more than 30

days, until 7/15/04 (with an unproven and unsubstantiated allegation that the check was returned, without

the original check nor its copy having been returned by 7/15/04), with a fictitious and hypothetical return

date stated as 7/8/04, and failing to give any formal legal notice of dishonor by its midnight deadline, and

failing to return the check by its midnight deadline, as required by law, precludes itself from the right to

debit Appellants account or bring a suit on contract against Appellant who is discharged of any liability to

Appellee. It is reiterated that Appellant never explicitly gave her consent to Appellee bank that she would

accept a copy of an original check as proof of notice of dishonor. Appellant has also not received the

original check back from Appellee as returned, by close of discovery, by 2/9/07.

Appellant would not have faced this situation if Appellant had banked with a more efficient bank than

BofA. Thus, the elements of estoppel (O.C.G.A 24-4-24) prevent the bank from obtaining a refund of

the amount credited to Appellants account on 6/14/04, as per legal precedence in First Ga. Bank v.

Webster, 168 Ga. App. 307, 308, S.E.2d 579 (1983). Burke v. First Peoples Bank of N.J., 412 A2d 1089

(N.J. Super 1980). Hence, Appellants withdrawal of funds and spending the money in the American

economy carries no liability for Appellant. Appellants summary judgment must hence be granted.

XV. BofA PRESENTED NO EVIDENCE TO JUSTIFY DISHONOR

BofA hasnt presented any evidence to justify its dishonor or any evidence of mailing any timely notice

of dishonor. Appellant did not withdraw any funds that were not hers/her familys, nor created an

Page 27 of 30
overdraft on her account, nor had any loan account or contractual obligation for any loan with BofA as

explained in Sections II and III of Appellants MSJ (R-754-873). Appellant is not liable for anything to

BofA as clearly explained in Sections II, VII, and other Sections of Appellants MSJ (R-754-873). O.C.G.A

11-4-214 is limited by O.C.G.A 11-4-301 and O.C.G.A 11-4-302, precluding Appellee from charging

back Appellants account, especially when check has not been presented to maker bank, as here. As

explained in Section II of Appellants MSJ, she did not open a checking account with BofA pursuant to its

unconsented terms and conditions (which were not actually disclosed to her but were drafted deceitfully &

unilaterally by BofA without her prior consent). BofAs checking a/c agreement is therefore immaterial

and irrelevant to this case. BofAs statements/documents/affidavits with remarks based on

rumors/hearsay, are inadmissible conclusory allegations (R-363-376). BofAs affidavit from its custodian

of records Crystal Frierson is inadmissible as per OCGA 24-3-14, as it was not made in the regular

course of business or contemporaneously when the events occurred but made in 11/04 and 11/06,

unreasonably long after Appellants account was closed in 8/04, at a time when there was no business

being transacted on her account. There was also no foundation laid for admissibility of the affidavit as per

OCGA 24-3-14 (b). Rumors from unknown sources are hearsay. Plemans v. State, 155 Ga. App. 447,

270 S.E.2d 836 (1980); Kumho Tire Co. Ltd. V. Carmichael, 526 U.S. 137 (1999). Appellants Motions in

Limine therefore should have been granted since BofAs affidavits based on hearsay, and hearsay itself

from unknown and unauthenticated original sources terming Appellants check as counterfeit based on

Conclusory allegations, speculation, opinions, whims, etc. in this case, breaking the chain of evidence, is

inadmissible. Other citations, including Opinions of The United States Supreme Court, suggesting that

such hearsay from BofA is inadmissible are; Clauss v. Plantation Equity Group, Inc. 236 Ga. App. 522,

512 S.E. 2d 10 (1999); Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993); General

Electric Co. v. Joiner, 522 U.S. 136 (1997). Crystal Frierson also does not have personal knowledge on

the issues of authenticity of Appellants check or the issue of whether BofA gave a timely notice of

dishonor by the midnight deadline, or about the unauthorized debits on Appellants account since she is

merely acting on hearsay and was not the original decision maker for the actions. Contrary to Court of

Appeals opinion of 11/20/09, BofAs said affidavit was also inadmissible as it fails the test of requirement

of personal knowledge of affiant for admissibility for Summary Judgment as per OCGA 9-11-56(e),

Page 28 of 30
Span v. Phar-Mor, Inc. et al. (251 Ga. App. 320) (554 SE2d 309) (2001). So, MSJ of BofA must be

denied & Appellants MSJ must be granted (R-383-472; R-754-873).

XVI. BofAs WITNESSES HAVE NO PERSONAL KNOWLEDGE

It is a fact that BofA, in its responses to first interrogatories (R-227-230), for questions #8 and #10,

pertaining to details on individuals with personal knowledge on the decision of clearance of Appellants

check, and on the subject matters of the case, clearly admits as follows: Appellee is not in possession

of names and addresses of a particular individual or institution responsible for the decision that the check

was counterfeit, and Persons in possession of specific knowledge related to this case have not been

identified So, there is lack of authentication and accountability for BofAs claims. None of BofAs

witnesses disclosed by discovery deadline of 2/9/07 provided by court (neither Crystal Frierson nor

Michael Ware), could possibly have any personal knowledge on issues of dishonor of check or notice of

dishonor as per O.C.G.A 11-4-301, and/or O.C.G.A 11-4-302, because they werent the individuals

who dishonored the check or the individuals who issued/mailed any such notice (R-346-362). So,

Appellants MSJ (as explained in its Section VIII) must be granted (R-383-472; R-754-873).

XVII. APPELLANT DESERVES TO BE COMPENSATED

Appellant is afforded affirmative relief claimed in her counterclaim (R-383-472) & rebuttal to

Appellees MSJ (R-625-690; R-754-873; R-878-902). BofA has liability towards Appellant on her

counterclaim (see Section IX of MSJ), as her actual loss and proximate damages sought are directly

caused by BofAs wrongful alleged dishonor of Appellants check, its failure to give a timely notice of

dishonor, and due to its abusive litigation, according to laws such as UCC 4-402, and/or O.C.G.A 11-

4-402, or/and O.C.G.A 11-4-302, by virtue of acceptance of said check as per UCC 3-413, and/or

O.C.G.A 11-3-413(a)(ii), and/or O.C.G.A 11-5-111, etc. and other laws. Simply put, BofAs frivolous

action and Courts erroneous decisions in past had caused Appellant to be the needless subject of a

rumor mill of hearsay from BofA which caused significant loss of employment opportunities and financial

resources for Appellant, as well as caused her needless anxiety, shock, worry, emotional trauma, pain

and suffering, etc., due to libel/slander and defamation of reputation by BofA, for which Appellant has

sought financial relief & compensation of around $344,876.54 to $500,000+ for damages.

Page 29 of 30
XVIII. CONCLUSION

The Honorable court should grant Certiorari and Petitioners requests in this case to overcome the

negative effects and repercussions of errant opinions from the Court of Appeals, the trial Court of Cobb

County, and errant bankers, as well as rumor mongering people in general who based their opinions on

intangible and inadmissible hearsay. The Honorable court must especially grant Appellants requests in

her Certiorari to financially compensate her, which would in turn have a benign ripple effect and benefit all

faultless and innocent people in this world such as Subbamma Vadde, and others like her involved in

international business/check transactions, such as bank customers/depositors, investors, businessmen

and business women, immigrants, citizens, and the world at large, in general.

Even if Appellant cannot demonstrate the exact/perfect measure of damages suffered and can only

quote to seek proximate damages of around $344,876.54 to $500,000+, as a fact finder, court can make
nd
a just and reasonable affirmation of this amount. Raishevich v. Foster, 247 F3d 337 (2 Cir. 2001).

WHEREFORE, Appellant requests this honorable court to grant relief to the appellant as an Extraordinary

Remedy and issue an Order: (1) Granting Appellants MSJ and dismissing BofAs action with prejudice;

(2) Ordering BofA to pay Appellant the principal amount of $1376.54 plus accrued pre and post judgment

interest from 7/8/04 (the day of wrongful debit & dishonor); (3) Granting the recovery for Appellant of

proximate damages and costs of around $344,876.54+ to $500,000.00+ (as is reasonable according

to the Honorable Judges right away, based on her pleadings in this Writ, without need for any trial), plus

legal pre & post judgment interest, from date of her MSJ in 2/07; and (4) Order BofA to clear all related

negative remarks on the check and account in this case, from Appellants credit reports, chex systems

reports, and any/all other Banking/Financial, or other legal information sharing agencies, immediately.
rd
Executed, this 23 day of December, 2009.

Respectfully Submitted,

Signed: ___________________

Subbamma V. Vadde

2630 Garland Way,

Duluth, GA 30096, U.S.A

Page 30 of 30
EXHIBIT COFAPLERR1

COPY OF INTERIM COURT OF APPEALS OPINION DOCUMENT DATED

11/20/09 ERRONEOUSLY AFFIRMING STATE COURT OF COBB COUNTYS

ERRONEOUS JUDGMENTS FROM 2/4/09 IN THIS CASE.


EXHIBIT COFAPLERR2

COPY OF NOTICE DATED 12/09/09, FROM THE CLERK OF THE COURT OF

APPEALS ON APPELLANTS MOTION FOR RECONSIDERATION SUBMITTED

TO THE GEORGIA COURT OF APPEALS, EFFECTIVE 11/30/09.


Court of Appeals
of the State of Georgia

ATLANTA, DEC 092009


The Court of Appeals hereby passes the following order:

A09Al714. VADDE v. BANK OF AMERICA.

B ank of America brought this action against customer Subbamma Vadde


seeldng to recover overdrawn funds in excess of $42,000, which resulted when a
check deposited by Vadde in the amount of $40,705 was returned on July 8, 2004,
due to fraud. On appeal, we affirmed the trial court's order which granted summary
judgment to Bank of America, denied summary judgment to Vadde, and dismissed
Vadde's counterclaim with prejudice, on the ground that Bank of America's actions
were permissible under the terms of the Deposit Agreement and Disclosures
statement signed and agreed to by Vadde. Vadde has filed a moti on for
reconsideration, repeating many of the same arguments asserted in her original brief
and attackin g this Court's legal citations as inapplicable to this case. In addition,
Vadde has raised two "new" arguments, namely that (I) she is not bound by the terms
of the D eposit Agreement and Disclosures statement because Bank of America closed
her account on or around August 2004, before this case was filed, and (2) there is no
evidence in the record that the Ul ster Bank dishonored the check.
Vadde 's "new" arguments are wrong. First, the Deposit Agreement and
Disclosures statement was in effect at the time her account w as overdrawn; for
purposes of this case, it is immaterial that the account had been closed at the time the
action was filed on April 7, 2006. Second, the affidavit of Bank of America ' s
custodian of records, stating that "Bank of Ameri ca was notified by the [Ulster Bank]
that the check had been returned unpaid as a counterfeit item," and the bank records
attached to the affidav it reflecting the same, are affirmative evidence establi shing that
the Ulster Bank dishonored th e check; Vadde 's statements to the contrary are
insufficient to create an issue for trial. I We also reject Vadde's attacks on the legal
citations in our opinion. The cited cases are used to support the various legal
propositions set forth in our opinion and it is inconsequentiaJ that they do not mirror
the facts of this case.
Vadde has not demonstrated that we overlooked a material fact in the record
or misapplied controlling authority. Accordingly, her motion for reconsideration in
the above-referenced appeal is hereby DENIED.

Court of Appeals of the State of Georgia 9


CI"k's Office. Atlanta DEC 0 9 ZOO
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.

I See, e.g., Fosterv. Ramsey, 245 Ga. App. 11 8-119 (I) (536 SE2d 550)(2000).
CERTIFICATE OF SERVICE

rd
This is to certify that I have this 23 day of December, 2009 served a copy of the foregoing

correspondence on: Petition for Writ of Certiorari, along with the $300 court costs/docketing fees, based

on errors in Georgia Court of Appeals Civil Case# A09A1714, in The Supreme Court of Georgia, by

certified U.S. Mail/FedEx courier, to the following people at the given addresses:

(1) Clerks Office, Supreme Court of Georgia, Phone: (404) 656-3470

244 Washington Street Fax: (404) 656-2253

Room 572, State Office Annex Building

Atlanta, Georgia 30334

(2) Mr. Michael Cohen

Trauner, Cohen, & Thomas

5901 Peachtree Dunwoody Road

Suite C-500, Atlanta, GA 30328 Phone: (404) 873-8000

Respectfully Submitted,

Subbamma V. Vadde

2630 Garland Way, Duluth, GA 30096, U.S.A

Phone: (404) 453-3531